Citation Nr: 1334160 Decision Date: 10/28/13 Archive Date: 11/06/13 DOCKET NO. 11-24 609 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, other than posttraumatic stress disorder. 2. Entitlement to service connection for the residuals of a deviated nasal septum, to include sinusitis. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Appellant ATTORNEY FOR THE BOARD Stephen F. Sylvester, Counsel INTRODUCTION The Veteran served on active duty from July 1948 to July 1950. This case originally came before the Board of Veterans' Appeals (Board) on appeal of a December 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. In a decision of May 2012, the Board found that new and material evidence had, in fact, been submitted sufficient to reopen the Veteran's previously-denied claims for service connection for posttraumatic stress disorder and an acquired psychiatric disorder other than posttraumatic stress disorder, and, in so doing, denied entitlement to service connection for posttraumatic stress disorder on the merits. At that same time, the Board remanded for additional development the issue of entitlement to service connection for an acquired psychiatric disorder other than posttraumatic stress disorder on a de novo basis, as well as service connection for the residuals of a deviated nasal septum. In a subsequent decision of January 2013, the Board denied entitlement to service connection for an acquired psychiatric disorder other than posttraumatic stress disorder, as well as service connection for the residuals of a deviated nasal septum, to include sinusitis. In an Order of May 2013, the United States Court of Appeals for Veterans Claims (Court) vacated the Board's January 2013 decision, and, in so doing, remanded the Veteran's case to the Board for action consistent with a May 2013 Joint Motion. The case is now, once more, before the Board for appellate review. Good or sufficient cause having been shown, the Veteran's appeal has been advanced on the Board's docket under the provisions of 38 U.S.C.A. § 7107 (West 2002) and 38 C.F.R. § 20.900(c) (2013). Finally, for reasons which will become apparent, this appeal is being REMANDED to the RO via the Appeals Management Center (AMC) in Washington, D.C. VA will notify you if further action is required on your part. REMAND At the time of the aforementioned Joint Motion for Remand in May 2013, it was noted that the Veteran's service treatment records were unavailable, in that such records were apparently destroyed in a fire at the National Personnel Records Center in 1973. Further noted was that, regarding the Veteran's claim for service connection for an acquired psychiatric disorder other than posttraumatic stress disorder, a new medical opinion was warranted, inasmuch as the one provided following a VA psychiatric examination in July 2012 was somewhat ambiguous. More specifically, at the time of the Joint Motion, it was noted that the VA examiner had indicated that the Veteran's panic disorder with agoraphobia was an acute, rather than a chronic disorder, and that his panic episodes were separate and distinct, and triggered by increased stress. The examiner then stated that "as is expected with panic disorder, the Veteran has also experienced clear periods of remission between episodes of panic." Reportedly, this begged the question that if the condition was acute and not chronic, how could it go into remission and recur under the correct circumstances, that is, stress. This was to say that, if the appellant had his first episode in service, then went into remission for a period of years, simply because the episodes were "acute" and "separate" and triggered by specific circumstances, would that mean that the underlying disorder, panic disorder, did not have its onset in service. Based on the conflict between "acute, rather than chronic" and "remission," the parties to the Joint Motion agreed that the VA examiner had failed to adequately explain why the Veteran's symptoms of anxiety in service were unrelated to his panic disorder. More specifically, the examiner did not state that the Veteran's symptoms were not a panic attack, thereby failing to establish the onset of a panic disorder in service. Rather, the examiner simply stated that the Veteran's diagnosis of panic disorder with agoraphobia in remission was less likely than not a continuation of symptoms of anxiety which first began during service. Regarding the Veteran's claimed residuals of a deviated nasal septum, the parties to the Joint Motion noted that, following a VA examination in 2012, a VA examiner offered the opinion that it was less likely than not that any diagnosed residuals of a deviated septum arose during service, or were otherwise related to any incident of service, to include a broken nose sustained while boxing in service, as described by the Veteran. The examiner's rationale was that a review of service treatment records were "scant," there was no documentation of an evaluation for, follow up for, or any additional work up for, a deviated nasal septum, or any injury which might have led to a deviated nasal septum. The parties to the Joint Motion agreed that a remand of the Veteran's claim was warranted, given that the VA examiner's opinion appeared to be based solely on the fact that service treatment records did not document any inservice injury, yielding, for all intents and purposes, no rationale for the provided opinion. According to the findings of the Joint Motion, this was particularly true where, as in the Veteran's case, service treatment records had been destroyed and the Board failed to assess the credibility of the Veteran's lay statements regarding his symptomatology since the time of his inservice injury. Under the circumstances, it was determined that the Board had erred in its statement of reasons or bases when, in relying exclusively upon the VA examiner's opinion, it failed to consider or address the credibility of the Veteran's lay statements describing the injury to his nose and the residual symptoms he experienced as a result of that injury. Finally, the Board observes that, at the time of the May 2012 remand, it was requested that the Veteran provide a full address for Dr. Stephen A. Lorenz III, the surgeon who performed his surgery for a deviated nasal septum in September 2002. Following receipt of that information, the aforementioned Dr. Lorenz was to have been contacted, with a request that he provide records of any and all treatment of the Veteran for his deviated nasal septum. A review of the record discloses that, in correspondence of early May 2012, it was requested that the Veteran provide a VA Form 21-4142 in order that the RO might obtain the aforementioned treatment records. However, pertinent evidence of record is to the effect that the Veteran failed to respond to that request. More specifically, while he did, in fact, provide completed VA Forms 21-4142, those forms contained only a narrative accounting of the Veteran's various problems, without the requested information. In that regard, it should be noted that, in a rating decision of February 2013, the Veteran was found to be suffering from dementia, with the result that he was declared incompetent. As of the present time, the Veteran's daughter, [redacted], has been appointed his fiduciary/legal custodian. Under the circumstances, the Board is of the opinion that an attempt should be made to obtain the necessary private medical information from the Veteran's daughter prior to a final adjudication of his claim for service connection. Accordingly, in light of the aforementioned, the case is REMANDED to the AMC/RO for the following actions: 1. The AMC/RO should contact the Veteran's daughter and legal guardian, [redacted], with a request that she provide the full address for Dr. Stephen A. Lorenz III, the physician who performed the Veteran's septal reconstruction in September 2002. Following receipt of that information, the AMC/RO should contact Dr. Lorenz, with a request that he provide copies of any and all records of treatment of the Veteran for a deviated nasal septum/sinusitis. All such information, once obtained, should be made a part of the Veteran's claims folder. The Veteran and/or his legal custodian should be requested to sign the necessary authorization for release of such private medical records to the VA. All attempts to procure such records should be documented in the file. If the AMC/RO cannot obtain records identified by the Veteran and/or his legal custodian, a notation to that effect should be included in the claims file. In addition, the Veteran and his representative should be informed of any such problem. 2. Any pertinent VA or other inpatient or outpatient treatment records, subsequent to July 2012, the date of the most recent VA examinations of record, should then be obtained and incorporated in the claims folder. Once again, the Veteran (or his legal custodian) should be requested to sign the necessary authorization for release of any private medical records to the VA. All attempts to procure such records should be documented in the file. If the AMC/RO cannot obtain records identified by the Veteran (or his legal custodian), a notation to that effect should be included in the claims file. In addition, the Veteran and his representative should be informed of any such problem. 3. The Veteran should then be afforded additional VA psychiatric and otolaryngologic examinations in order to more accurately determine the exact nature and etiology of any acquired psychiatric disorder (other than posttraumatic stress disorder) and residuals of a deviated nasal septum (to include sinusitis). These examinations should be conducted by a VA psychiatrist and otolaryngologist who have not heretofore seen or examined the Veteran. The Veteran (and his legal guardian) are hereby notified that it is his responsibility to report for the examinations, and to cooperate in the development of his claims. The Veteran (and his legal guardian) are further advised that the consequences for failure to report for a VA examination without good cause may include denial of his claims. 38 C.F.R. §§ 3.158, 3.655 (2013). In the event that the Veteran does not report for the aforementioned examinations, documentation should be obtained which shows the notice scheduling the examinations was sent to his last known address. It should also be indicated whether any notice sent was returned as undeliverable. Following completion of the psychiatric examination, the examination psychiatrist should offer an opinion as to whether any clinically-identified acquired psychiatric disorder (other than posttraumatic stress disorder) at least as likely as not had its origin during, or is in some way the result of, the Veteran's period of active military service. In offering this opinion, the examining psychiatrist should consider and discuss the Veteran's lay statements, as well as testimony of record pertaining to the Veteran having experienced his first panic attack during service. The examiner should additionally consider and discuss the Veteran's lay statements and testimony of record pertaining to continuous symptomatology and treatment for "bad nerves" since discharge, as well as frequent references and VA treatment records describing the Veteran's disorder as "longstanding." If alternative causes for the disorders in question are identified, they should be specifically so stated. Finally, it should be indicated whether any diagnosed anxiety and/or depression is at least as likely as not related to an inservice event or occurrence. Following completion of the otolaryngologic examination, the examiner should specifically comment as to whether the Veteran currently suffers from chronic, clinically-identifiable residuals of a deviated nasal septum, to include sinusitis. Should it be determined that the Veteran does, in fact, suffer from such residuals, an additional opinion is requested as to whether such pathology at least as likely as not had its origin during, or is in some way the result of, an incident or incidents of the Veteran's period of active military service, to include an inservice boxing injury. A complete rationale must be provided for any opinion offered, and all information and opinions, once obtained, must be made a part of the Veteran's claims folder. The claims folder must be made available to and reviewed by the examiners prior to completion of the examinations. In addition, the examiners must specify in their reports that the claims file and Virtual VA records have been reviewed. 4. The AMC/RO should then review the examination reports to ensure that they are in complete compliance with the directives of this REMAND and that the examiners have documented their consideration of all records contained in Virtual VA. If the reports are deficient in any manner, the AMC/RO must implement corrective procedures. 5. The AMC/RO should then readjudicate the Veteran's claims for service connection for an acquired psychiatric disorder other than posttraumatic stress disorder and the residuals of a deviated nasal septum, including sinusitis. Should the benefits sought on appeal remain denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case (SSOC). The SSOC must contain notice of all relevant action taken on the claims for benefits since the issuance of the most recent SSOC in November 2012. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome in this case. The Veteran need take no action unless otherwise notified. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).